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It's coming up to two years since the National Planning Policy Framework (NPPF) was introduced. Now that the proverbial dust has settled on this much-welcomed guidance and a number of appeal decisions are in, we thought it'd be a great time to review how effective its sequential test in retail planning has been thus far.

What is the NPPF's sequential test in retail planning?

Published in March 2012 by the Department of Communities and local Government (CLG), the NPPF looked to consolidate the dozens of Planning Policy Statements and Planning Policy Guidance Notes that had previously been used to inform various aspects of town planning in the UK.

It was welcomed across the board for cutting down guidance on planning issues to fewer than 60 pages, putting greater emphasis on sustainable development and brought with it a potential new impetus for the sequential test for town centre uses.

Detailed in paragraphs 24-27 of the NPPF, the sequential test sets out the requirements for developments for main town centre uses. It states that these should be located within the town centre, or if this isn't possible, edge-of-centre locations. Only in cases where there is a distinct lack of suitable sites outside of the town centre be considered.

The test is intended to ensure that retail developments (and other types of development that are appropriate to be situated within town centres) will not end up in a location that would draw away trade from the town centre.

While hopes were high for the test, in our experience and from what we've found by looking into recent appeal decisions, matters still seem far from clear.

The NPPF sequential test in Practice

Any new guidance document requires a period of adjustment for kinks to be ironed out, the relevant authorities to digest its implications and planning professionals to implement its guidance. However, we're well outside this grace period and would hope that an examination of appeal decisions would show a pattern of how the new guidance plays out in practice.

While the NPPF should offer developers a degree of certainty in terms of assessing the compliance of their schemes, unfortunately, we're far from convinced this is actually happening.

Sheffield and Holmfirth

One interesting example of how the NPPF's guidance is being applied was a recent appeal decision made of land at Vulcan Road in Sheffield (British Land Company PLC against the decision of Sheffield City Council). British Land was refused planning consent in April last year for a proposed 5,678sqm gross Next Home and Garden store, a drive-through Costa coffee shop and a car dealership.

Following a four-day public inquiry into the proposal, the refusal was overturned by the Inspector in July this year. We found this decision to be rather at odds with the principles of sustainable development set out in the NPPF, particular given the fragile nature of the regeneration that Sheffield City Centre is currently undertaking.

Beyond being the most significant change in planning policy for a decade, our interest in the practice of the NPFF was further sparked by an appeal decision in which we were involved as a Rule 6 party at the former Midlothian Garage site in Holmfirth. In this instance, Tesco appealed against the refusal of its application to build a food store in an out-of-centre location by Kirklees Council. However, in this case the Inspector deigned to dismiss the supermarket's appeal in September this year.

In both examples, the appeals centred around compliance with the sequential test for site selection (as no one refuted the fact both sites were positioned in out-of-centre locations). However, the way the NPPF guidance was interpreted by Inspectors in each case varied widely.

For instance, in Sheffield, the sequential site was directly adjacent to the core retail area of the city centre, standing a little over 400m from the primary retail frontage. Despite the patently obvious and easy connection with the city centre's retail core, the Inspector classified the site as being out-of-centre.

However, in Holmfirth the site was located nearly 300m from the boundary of Honley centre, which has no defined primary retail frontage. You can't see the site from the town's retail centre and the pedestrian route involves a steep uphill walk, crossing a river and passing no other town centre usage. Despite these mitigating factors, the Inspector in this case opted to class the site as being on the edge of centre.

And the disparities don't stop there. While neither site was vacant at the time of the Public Inquiries, both had agreements in principle for the relocation of occupiers. But while the Sheffield site was held to not be available, the Holmfirth Inspector claimed there was "little serious doubt" about the position. The key difference between the two was that the financial transaction for Holmfirth had been agreed in principle, while Sheffield's had not.

However, it's important to note that nowhere within either the NPPF or draft Practice Guidance is it said that for a site to be classed as available, a financial agreement needs to be in place. Unless the inspectorate have been told something we haven't?

A Lack of Consistency

We've looked into numerous other examples of how the NPPF's guidance has been applied in practice and without delving into facts and figures, the bottom line is that there appears to be little consistency in how the NPPF and even the High Court judgement in Dundee (Tesco Stores v Dundee Council, March 2012) are interpreted.

Despite recently having the pleasure of viewing the beta version of the new Practice Guidance to accompany the NPPF, we still fail to see where or how any additional clarity is provided. Indeed, it seems that confusion reigns supreme.

So what are the implications of this lack of concrete guidance? We've already seen the Sheffield case quoted within planning submissions to justify out-of-centre development in the face of sequentially preferable sites. However, if more applicants seize the potential that this case presents and take advantage of the lack of definitive guidance on these issues, we could see a big push on out-of-centre development - the very thing which the sequential test seeks to prevent.

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